A unanimous U.S. Supreme Court ruled June 12, 2008 that the government may not reject Freedom of Information Act (FOIA) requests for federal agency documents on the ground that another party has already unsuccessfully sued for the same documents.
The opinion in Taylor v. Sturgell, 128 S.Ct. 2161 (2008), written by Justice Ruth Bader Ginsburg, rejected the lower court’s holding that the second party to sue for the same documents under the federal FOIA could be denied the documents based on a theory called “virtual representation,” which states that nonparties to a lawsuit can be bound by that lawsuit’s result if they bring a second lawsuit that states a similar claim.
The Supreme Court’s central holding was that the lower court’s application of virtual representation in two similar but not legally connected FOIA claims could not overcome “the deep-rooted historic tradition that everyone should have his day in court.”
The case arose after two antique aircraft enthusiasts had sought the same Federal Aviation Administration (FAA) documents related to an antique F-45 airplane manufactured by the Fairchild Engine and Airplane Corporation. Greg Herrick, who was restoring an F-45 he owned, had been denied the documents by the FAA after the Fairchild company had objected to their release based on the trade secret excemption to the FOIA at 5 U.S.C. section 552(b)(4). A federal district court in Wyoming and later the 10th Circuit U.S. Court of Appeals upheld the FAA’s decision to withhold the documents.
Brent Taylor, a fellow antique airplane enthusiast and friend of Herrick’s, filed a FOIA request for the same documents shortly after Herrick’s request was denied. After the FAA failed to respond to his request, Taylor filed suit in U.S. District Court in the District of Columbia. The D.C. District Court granted the FAA summary judgment in May 2005 based on the virtual representation theory of claim preclusion, and the D.C. Circuit Court affirmed in June 2007.
The D.C. Circuit announced a five-factor test for virtual representation. It said the first two prongs of the test, a showing that the two parties had an “identity of interests” in their lawsuits and that the first litigant had “adequately represented” the second litigant, were necessary for a finding of virtual representation, but not in themselves sufficient. Additionally, the court ruled, one of three other factors must be shown: a “close relationship” between the two litigants, “substantial participation” by the first litigant in the case of the second litigant, and “tactical maneuvering” by the second litigant to avoid their claim being precluded by the decision in the first suit.
According to the Supreme Court opinion, the D.C. Circuit found an identity of interests between the Herrick and Taylor lawsuits because they both wanted the same result – the release of the FAA documents – and adequate representation because they had both hired the same attorney. The appeals court also found a close relationship between the two litigants because they were friends and had planned to work on Herrick’s F-45 together, and therefore granted summary judgment to the FAA on the basis of virtual representation in Taylor v. Blakey, 490 F.3d 965 (D.C. Cir. 2007).
Ginsburg wrote that the D.C. Circuit’s reasoning in the Taylor case adopted a broad theory of preclusion that went against the high court’s emphasis of “the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party.” The opinion said the D.C. Circuit’s “amorphous” balancing test was at odds with the “constrained approach” advanced by the high court and “would likely create more headaches than it relieves.”
The Supreme Court also rejected the FAA’s argument that nonparty preclusion should apply more broadly to “public-law” litigation, such as a FOIA request, than in “private-law” controversies. Ginsburg observed that, while the FOIA is a law that serves the public interest generally, it instructs agencies receiving FOIA requests to make the information available not to the public, but rather to the individual making the request. “A successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large,” the Court said.
The Court remanded the case to determine whether Taylor had in fact acted as Herrick’s agent, but said the burden should lie with the government to prove the relationship, and “a mere whiff of ‘tactical maneuvering’ will not suffice.”
– Patrick File
Silha Fellow and Bulletin Edito